The suit was dismissed by the lower Court on the ground, that the plaintiff was not competent to maintain the action, in the absence of his brother as a party on the record and that when, on this defect having been pointed out, he applied to have his brother impleaded, the suit was barred by limitation. The plaintiff attacks the correctness of this decree. The suit was filed on the 14th of February 1920, and its nature may be thus shortly described. The defendants sold the plaintiff and his brother, by a conveyance, dated 17th February 1917, certain villages including Penjendra, the suit village. The price of the village in question was fixed at 29 times its net income, which was stated at the time of the contract to be a certain amount. The plaintiff, however, discovered later, that the amount of the income had been overstated and that certain other fraudulent representations had been made. He goes on to allege, that in a partition entered into subsequently between himself and his brother, the suit village fell to his share and that by reason of the aforesaid fraud of the defendants at the time of the sale, he is entitled to recover from them compensation. The measure of damages is stated to be the amount received by the defendants in excess of what was actually payable to them together with interest thereon. It was further alleged that the fraud was discovered on the 24th of April 1919, on which date, the cause of action was said to have arisen. It will be necessary to advert presently to the course taken by the suit in the lower Court; but, for the present, it is sufficient to observe, that the plea of non-joinder was taken on the 23rd of October 1922, which led to the raising of an issue on that point and that the plaintiff thereupon, on the 19th of July, 1923, presented an application requesting his brother to be added as a pro forma defendant. It is common ground, that, if the suit had been instituted on the last mentioned date, it would have been barred by limitation. The lower Court's judgment is obscure in several places, but its decision, both parties agree, rests on the ground, that it would be useless to bring the plaintiff's brother on the record, at a time, when if the defect was allowed to be cured, the suit would be liable to be dismissed as barred by time. In the result, the plaintiff's application to implead his brother as party-defendant was rejected on the 6th of April 1925, and on the same date the suit itself was dismissed on the ground that, as constituted, it was incompetent.

The question to decide is, whether this is an action of pure tort or an action for a wrong arising out of a contract. On that depends whether the decision of the lower Court is right or not. Torts, strictly speaking, are wrongs independent of contract; but the law recognises a distinction between wrongs arising out of a contract and wrongs wholly independent of contract. The latter are called “pure torts” in order that they may be distinguished from the former.

The legal incidents of these two kinds of torts vary greatly.

In an action for a wrong arising out of a contract, the same persons must be joined as parties as are necessary in actions for breach of contract. But in actions of pure tort (that is, for wrongs independent of any contract) much greater liberty is allowed as to the joinder of parties.

In order, therefore, to decide, whether a suit, for a wrong arising out of a contract, is properly constituted or not, the same principles must be applied, as if the case is one for breach of contract.

(Odgers on The Common Law, 3rd Edn., Vol. I page 646; Vol. II, pages 474 and 475).

As to who can claim performance of a promise made to joint promisees the law is declared by Sect. 45 of the Indian Contract Act. That section reads thus:

“When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.”

The law as enacted by this section departs from the English law in some respects; but as regards so much of the rule as is applicable to the present case, the English and the Indian law are identical. If this action is then to be regarded as one for breach of contract, both the promisees being alive, the suit should have been brought by both of them. One of the promisees alone could not, under this Section, maintain the suit. If the suit is, on the other hand, to be regarded as one of pure tort, the objection of non-joinder cannot prevail: Odgers, Vol. II page 475, already quoted. In Halsbury's Laws of England, Vol. 23, paragraph 173, the law is thus stated:

“Where several persons are injured by a joint tort, it is not necessary that all who are injured should join as plaintiffs; any one of the persons injured may sue without joining the others.”

See also Roberts v. Holland (1).

What then is the test of this distinction between an action of tort and an action for a wrong arising out of contract? The general rule is, that where a contract exists, the suit must be in contract and not in tort. But the fact that there is a contract will not prevent the plaintiff from suing in tort if he can do so without relying on the contract; for example, a physician who harms his patient by negligently administering a deleterious drug is guilty of a wrong which is both a breach of contract and a tort. It is a breach of contract because the physician has impliedly promised to use due care and skill in the treatment of his patient, and it is also a tort because, apart from contract altogether, no one has a right to do another physical harm by giving him poison. But, if, in order to establish the liability of the defendant, it is necessary for him to prove the contract, then he must sue in contract and not in tort; for it is the contract that defines the defendant's liability. The same principle is also thus stated: If the complaint is in respect of an act which without proof of any contract does not give rise to a cause of action, then the suit is based upon contract and not upon tort. If, on the other hand, the relation of the plaintiff and the defendant be such that a duty arises from that relationship, irrespective of contract, then the suit is one of tort.

(Odgers, Vol. I, page 646; also pages 440 and 441; 27 Halsbury Paragraph 907; 1 Halsbury Paragraph 79).

(For the illustration given above, see Salmond on Torts, 6th Edn. page 3).

It is somewhat difficult to ascertain as stated in Odgers, whether the facts of a particular case give rise to a cause of action founded on tort or on contract: (Vol. 1, page 440). But, in the present case, there seems to be no such difficulty. Were the defendants, apart from the contract of sale, bound to tell the truth and state their rentals correctly? Did they owe any such duty to the plaintiff? Supposing there was a wilful misrepresentation but that it was not followed by a contract, what possible ground of action could the plaintiff have? In this case the plaintiff does not complain of a breach of duty arising out of some relationship between the parties at Common Law; on the other hand, he is obliged to rely upon the contract made and his action is, therefore, founded on contract.

For the respondent, it is argued, that this is an action for deceit, as if that statement necessarily implies that it is not founded on contract. This argument is based upon a misapprehension. By reason of a fraudulent representation, the representee may alter his position in various ways. The alteration of position may take the form of some unilateral transaction; for instance, B may represent that C desired A to deliver a horse and acting on the faith of that representation A may deliver the horse to B. Again, the representee's alteration of position may assume the form of a contract with the representor. In both these cases, an action for deceit will lie. In the former, the representee has not to rely upon any contract; in the latter, without relying upon the contract, he gets no cause of action at all.

(Halsbury Vol. 20, paragraphs 1690, 1692 and 1737).

Now let us turn to the plaintiff's own allegation in his plaint. He says, in paragraph 10, that what he seeks to recover is the difference between what was paid as the price and what would have been payable had there been no fraud. How could the plaintiff in the face of this say, that what he paid was not in pursuance of the contract of sale? In assessing damages in actions for deceit, there is only one side to the account when the alteration of the representee's position consists in some act other than his entering into a contract, or, there are two sides to the account when the alteration assumes the form of a contract. In this case, on the one side of the account must be placed what the plaintiff alleges he paid on the faith of the fraudulent representation; on the other side is to be set what would have been in truth payable had the facts been truly stated. It is the balance that represents the measure of damages. (Cf. Halsbury. Vol. 20 paragraph 1737). This is precisely the footing on which the plaintiff claims damages in the suit. Supposing he proves misrepresentation but fails to prove the contract, can he succeed? Mummery v. Paul was an action for fraudulent representation on the sale of a commission business. It was alleged that the defendant by representing that the profits of the trade were of a certain amount induced the plaintiff to buy the business for a certain sum. The declaration went on to allege that the representation was false and that the plaintiff was entitled to compensation. At the trial, the plaintiff failed to prove the contract of sale, and the question arose, whether the defendant could take advantage of this omission. It was held that it was not enough that the misrepresentation was proved, but it was further incumbent on the plaintiff to prove the sale. On this ground, the action was dismissed. This shows that the plaintiff cannot succeed without relying upon the contract.

From this discussion, if follows that this suit is not one of pure tort, but, on th other hand, for a wrong arising out of a contract. In that case, the suit should have been brought by both the joint promisees and the objection taken as to non-joinder is therefore valid.

In order to follow the next contention, certain facts as regards the course taken by this suit in the lower Court must be stated. The suit was filed against four defendants. The second was the son of the first, the third and the fourth who were minors, were the sons of the second. The suit was filed, as stated above, on the 17th February 1920. The 1st defendant filed his statement on the 14th of July 1920. On behalf of the 3rd and 4th, the 2nd defendant filed a statement on the 22nd of July 1920. In these statements, no plea of non-joinder was taken. The 3rd defendant was declared a major on the 31st of July 1922, and he thereupon applied to the Court for permission to file an additional written statement. Along with his application, he presented such a statement containing two fresh pleas, one of them being the plea of non-joinder. O. 8, R. 9, Civil Procedure Code, enacts, that no additional written statement shall be presented except by the leave of the Court. O. 6, R. 7, prescribes, that no pleading shall, except by way of amendment, raise any new ground of claim. The effect of these two provisions is, that no new plea shall be allowed except by way of amendment of the original pleading and that no new pleading shall be filed except by the leave of the Court. The order of the Judge on this application dated 31st October, 1922, reads thus:

“No objection. Permitted to file additional written statement.”

The leave was thus granted by the Court and, as the order shows, without objection. So far, the provisions of the Code were not infringed. But O. 1, R. 13, Civil Procedure Code, says:

“All objections on the ground of non-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subseqently arisen, and any such objection not so taken shall be deemed to have been waived.”

For the appellant it is contended, that the objection as to non-joinder not having been taken at the earliest possible opportunity must be deemed to have been waived. In the first place, it must be pointed out, that this contention based on waiver, was not raised in the lower Court. The learned Judge states in his judgment that this point, was not argued. This statement is borne out by one of the Counsel before us who also appeared in the Court below After observing that the point was not argued, the Judge proceeds to consider it and holds that there was no waiver. The appellant should not, in the circumstances, be allowed to raise this point for the first time in appeal. But there seems to be to substance in his contention. Under rule 13, the objection as to non-joinder should be taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. In this case, did the 3rd defendant comply with this provision or not? He was permitted to file an additional written statement. What, in such a case, could be the earliest possible opportunity? The first time he could raise the point was, when the fresh written statement was filed and he accordingly did raise it. After the additional statement was so filed, two fresh issues were framed and the first of them raised the question of non-joinder. The rule requires that the ground of non-joinder should be taken before the settlement of issues. The plea having been raised before the fresh issues were settled. It must be held that this rule has not been infringed. Moreover, there is another answer to the appellant's contention. Such waiver as there was, resulted from the 3rd defendant's guardian having failed to raise the ground of non-joinder in the earlier written statement. The waiver of such a right was clearly not for the benefit of the minor and by that waiver he is not bound. Rhodes v. Swithenbank , Swami Rao v. The Collector of Dhurwar (2) and Sanyasi Rao v. Venkata Rao (3). Supposing the minor had not come of age and the suit ended against him, he might on becoming a major impeach the judgment on the ground of his guardian's negligence. Whether, in such a suit, he would succeed or not is beside the point. But if the defect is in proper time brought to the notice of the Court, it must be within its competence to rectify it and put it beyond the power pf the parties to impugn the judgment later. The contention, therefore, raised for the appellant based on waiver must on each one of these grounds be rejected.

It now becomes necessary to refer to a curious order made by the Judge on which the next contention of the appellant is based. When the 3rd defendant applied to be permitted to file an additional statement, he also applied by a separate petition that fresh additional issues might be raised. Both the applications were disposed of on the same day. After making an order as already stated on the 31st of October 1922 permitting the third defendant to file a fresh statement, the Judge, on the same date, passed the following order.

“The respondents' pleader objects to the framing of the 1st issue on the ground that it amounts to non-joinder of plaintiffs and that the objection should have been taken at the earliest opportunity but on the 1st issue asked for, the defendants' pleader wants to argue it as a question of law, whether plaintiff alone has got right to maintain the suit for the whole amount of damages claimed by him. It is only in that aspect the 1st issue is allowed.”

The first issue referred to in the above passage ran thus:—

“Whether the plaintiff is alone competent to maintain the suit without his brother Sree Rajah Venkata Ramayya Apparao Bahadur.”

It is now contended for the appellant that the issue as raised, is controlled by the terms of the order referred to above and that therefore all that the defendants can urge is, that the plaintiff cannot recover more than his half share and not that the defect of non-joinder is fatal to his entire claim. In the lower Court, everyone seems to have ignored this order and the issue as framed was tried. Even the appellant's Counsel was not aware of this order and it was only about the close of a long argument extending over two days, that a contention based upon it was raised. The fact was, that he lighted on the order by sheer chance, when in order to answer a question from the Bench, he had to look into the original record in Court. We cannot therefore allow this contention to be raised. Moreover, the order is far from clear and even granting that the only issue to try was, the issue as controlled by that order, the Court had power under O. 14, R. 5 Civil Procedure Code, to amend the issue and it must be assumed in the events that have happened, that it accordingly, in the exercise of that power, restored the issue to its original form. When every party concerned went to trial on the footing that the issue as it stood was to be tried and that alone was in fact tried, it would be unjust after the expiry of six years from the judgment, to vacate it on the ground that the parties and the Judge were under a misapprehension. The appellant's Counsel fairly conceded that if we upheld his contention in this respect, we must straightway remit the case to the lower Court; for there is nothing to show that the plaintiff is entitled to a half share. The terms of the partition have nowhere ever been set out and the evidence will have now to be taken afresh. It is impossible, in the circumstances, to comply with the appellant's request.

It is next faintly suggested for the appellant, that though the right was at its inception joint, it must be deemed to have passed solely to the plaintiff by reason of the partition. Let us suppose that the vendees had sold the property to a third party. Can the latter sue the original vendors for damages, in respect of the deceit practised upon their vendee, that is to say, his vendor? Clearly not. Further, there was only a transfer of the property, but there was no transfer of the right to sue apart from the objection, that a mere right to sue cannot be transferred. (See: The Transfer of Property Act, Sect. 6 (e); 20 Halsbury paragraph 1742). This is not a case of a covenant which runs with the land. This contention of the appellant is also rejected.

Sect. 22 of the Limitation Act provides inter alia that when a new party is added as a plaintiff, the date of his being so added is to be considered as regards him as the date of the institution of the suit. If such a party is added beyond time, what is the result? It is tantamount to his being brought on the record and then his name being forthwith struck out. The suit was imperfect as originally constituted. The adding of a party whose claim has become barred does not cure the defect. On this ground, it has been held in numerous cases, that when necessary parties are not joined within the period of limitation, the suit must be dismissed. In this case, the Judge refused to add the plaintiff's brother as a party. This is in substance correct, for, it would be a mere idle formality to first add him as a party and then dismiss the suit.

The decree of the Court below is confirmed and the appeal is dismissed with costs.

N. R. R.Appeal dismissed.